Appasami Iyengar vs Sundaram Iyengar and Another

We think the appeal must be dismissed with costs.

The contention in this appeal is that the question as to whether the assignment ought to be recognized or not was previously determined by the High Court against the assignee and was, therefore, res judicata. But we do not think that it is open to the appellant to raise this question. The order made on the 20th November 1907 was passed after notice duly served on the present appellant but he did not choose to appear in that proceeding where he could have taken the objection he now takes before us. The appellant''s Vakily however, urges that as a matter of fact no notice was served on him of the application on which the order of 20th November was passed and it was, therefore, open to him now to raise the question of res judicata. It appears that he applied u/s 108, Civil Procedure Code, to have the ex parte order set aside. That application was refused on the 23rd March 1908 bat no appeal has been preferred against that order and we must now take it to be final on the question as to whether Notice of the application was duly served. Besides the order of the High Court which is alleged to have the effect of res judicata does not appear to have determined any question as to the validity of the assignment. The appeal is dismissed with costs.